Wednesday, March 25, 2009

Arrests and indictments for "endangering state security" (ESS) in China soared in 2008, more than doubling for the second time in three years, according to data made available by the Supreme People's Procuratorate (SPP) in its annual work report to the National People's Congress (NPC) on March 10.

While no figures for ESS were explicitly provided, data appended to the work report distributed at the annual plenary session of China's legislature point unambiguously to such a rise. Based on those statistics, The Dui Hua Foundation estimates that last year more than 1,600 individuals were arrested and more than 1,300 individuals indicted on state security charges in China.

Arrests and prosecutions for alleged "splittist" activities by Uyghurs and Tibetans are believed to have contributed significantly to the large increases in 2008. Security forces cracked down in Tibetan areas and Xinjiang following an uprising in Lhasa last March and numerous protests throughout the Tibetan plateau amid concerns that ethnic unrest and social instability would mar the Olympic Games held in Beijing last August.

Close Tracking Makes Estimate Possible

In 2007, Dui Hua called attention to the doubling of ESS arrests in 2006 over the previous year. Last year, the foundation used data announced in the SPP work report for 2007 to reveal another 23 percent increase in ESS arrests for that year. As early as January 2009, there were indications that arrests and prosecutions for ESS increased significantly in 2008. That month, an official spokesperson for the Xinjiang Uyghur Autonomous Region People's Procuratorate revealed that nearly 1,300 individuals were arrested for endangering state security in that region alone—compared to 742 for the entire country in 2007.

The version of the SPP work report for 2008 that was distributed to NPC delegates, members of the media, and other observers included charts breaking down arrest and indictment totals by the crime categories as found in China's criminal code. In these charts, the three smallest categories—ESS, "endangering national defense interests," and "dereliction of duty by military personnel"—are combined in a category marked "Other." When these totals are routinely reported in the China Law Yearbook, each category is listed separately. Looking at the data over time, one finds relative stability in the number of arrests and prosecutions made for endangering national defense interests and dereliction of duty by military personnel—meaning that most of the variance can be attributed to ESS cases.

Analysis Yields Astonishing Results

From 2004 to 2007, arrests for endangering national defense interests and dereliction of duty by military personnel remained at a fairly consistent rate of about 7 per 20,000 total arrests. (By contrast, arrests for ESS over this same period displayed considerable variation.) Assuming that this rate did not vary considerably in 2008, it would mean that Chinese law enforcement authorities arrested more than 1,620 individuals for ESS that year. This marks a 119 percent increase over 2007 and a 448 percent increase over the historic low reported in 2005. Similar calculations for indictments yield an estimate of 1,327 for ESS in 2008, a 114 percent increase over 2007 and a 280 percent increase over 2005.

Corroboration of a doubling in arrests and indictments for ESS in 2008 can be seen in figures made public in the work report of China's Supreme People's Court, which shows that first-instance trials for ESS (and a small number of trials for dereliction of duty by military personnel) increased by more than 50 percent compared to 2007. Given that it routinely takes 12 months or longer to conclude ESS trials, one would expect to see a substantial proportion of the arrests and indictments in 2008 reflected in trials concluded in 2009. (Click on the chart below to view data on ESS arrests and indictments in China since 1998.)

Dui Hua's estimates for arrests and indictments for ESS in 2008 raise questions about the report from Xinjiang earlier this year. If, as reported, 1,295 individuals were arrested for ESS crimes in Xinjiang during the first 11 months of 2008, this would comprise 80 percent of Dui Hua's estimated total, leaving roughly 330 arrested throughout the rest of the country—including Tibetan areas, where dozens, if not hundreds, are suspected of having been charged with ESS during the year. This number appears rather low.

It is possible that the data reported nationally and the data for Xinjiang do not categorize ESS crimes the same way, with the Xinjiang total including cases of terrorism and other crimes that do not strictly fall under the category of ESS as defined by the criminal code. However, if uniform criteria are being used, it means either that Uyghurs and Tibetans represent an even larger proportion of ESS cases than previously believed or that Dui Hua's estimate for the total number of arrests and indictments nationally is too conservative. Clarity on these questions will have to wait until the 2009 China Law Yearbook is published—assuming that Chinese authorities maintain a basic level of transparency of the criminal justice system by continuing to report specific figures for ESS crimes.

Friday, March 6, 2009

In recent weeks, the official Chinese media has covered the issue of a special pardon to celebrate the PRC’s 60th anniversary, with opinions of prominent academics and legal professionals appearing in many publications. Dui Hua has generated attention on the proposal since early this year, featuring it in the Winter 2009 issue of the Dialogue newsletter and in postings in the Human Rights Journal, and will continue to track official discussion on the topic. The following summarizes and provides context for some views on the “anniversary special pardon” published in China since mid-February, with links to referenced Chinese-language articles.

The anniversary pardon proposal recently gained widespread attention in China when an interview with Gao Mingxuan (高铭暄), a professor at Renmin University and preeminent legal scholar and pioneer in the field of Chinese law, was published on February 16 in the Yangcheng Evening Post(羊城晚报). This occurred soon after a convicted murderer in Suizhou in Hubei Province had been sentenced to death and then appealed for clemency based on the principles of a special pardon, an incident which stimulated tremendous debate. Assuring he did not consider that particular case as commensurate with such a pardon, Prof. Gao stressed that special pardons should not be issued indiscriminately for prisoners who show no remorse or still pose threats to society, but instead can be implemented under proper conditions, such as in recognition of prisoner reform and for national anniversaries.

Gao also emphasized that special pardons have a role in promoting “harmony,” a central ideal of current Chinese leaders, and commented on its rehabilitative benefits for individuals and society. In his remarks, he likened the reform and pardoning of prisoners to the treatment of people with serious illnesses who should be hospitalized and then released once their health is restored.

Other legal scholars and members of the general public have since expressed strong opinions on the proposal. The many responses in favor of an anniversary pardon have underscored its humanitarian nature, precedents that exist in Chinese history, and the legal provisions of pardons set forth in Articles 67 and 80 of China’s constitution. For voices opposed, principal concerns have been how China can implement pardons while avoiding corruption of the process, the lack of clear procedures for implementing pardons, and whether public safety would be jeopardized by a large-scale release of prisoners.

The China Youth Daily (中国青年报) published a response supportive of Prof. Gao’s call. The article urged that the proposal be taken seriously as a policy with a sound basis in both Chinese law and common sense, and argued that punishment and reform of prisoners have been complementary elements throughout Chinese history.

In a February 18 article in the Chinese Commercial Daily (华商报), Jia Yu (贾宇), a scholar from the Northwest University of Political Science and Law, repeated a sentiment often voiced by special pardon supporters: Pardons demonstrate the confidence and tolerance of a powerful country and reflect the political stability, national prosperity, and social environment of today’s China. Still, Prof. Jia was skeptical that there would be support for pardoning prisoners convicted of “endangering state security” or economic crimes due to the serious nature of the offenses. He further suggested that pardons should not be determined based on crime categories. Jia indicated that an option could be to consider pardons for common criminals who receive light prison sentences and those with less than three years left to serve in prison.

Not all intellectuals, however, have been in favor of the special pardon. In a February 25 interview published in Southern Weekend (南方周末) responding to Prof. Gao, criminal law expert Zhou Guangquan (周光权), who is a member of the National People’s Congress Law Committee and vice dean of Qinghua University’s School of Law, spoke out against the proposal, reasoning that conditions for a special pardon are not appropriate this year.

Zhou made four main points against the special pardon: 1) A pardon could influence China’s criminal law and judicial authority, as people now put their faith in the judicial system to appropriately punish criminals; 2) institutions are not in place to reintegrate pardon recipients back into society and professional life, since the prisoners themselves may not have been reformed; 3) many crimes involve victims who have been harmed but gone uncompensated for their injuries, so releasing prisoners might lead to direct conflicts between criminals and their victims and give rise to new social unrest; and 4) a special pardon might undermine already tenuous social stability, which Zhou pointed out is a concern harbored by the general public, and one that is not without merit.

In reality, attitudes among the general Chinese public about an anniversary special pardon are hard to ascertain. Amid the coverage in the Chinese press have been online surveys, however unscientific, that suggest a substantial number of common citizens may support the idea of a special pardon this year. (A poll showed in early March, after nearly 50,000 “votes” had been tallied, the numbers of supporters and opponents of the pardon proposal were nearly identical.) While definite conclusions cannot be drawn from this kind of polling, the mere existence of surveys—and the growing coverage in official media—clearly demonstrates that the idea of an anniversary special pardon is being considered by Chinese citizens and heard among high-level Chinese leadership.